CIVIL REVN. APPLN. NO. 79 OF 2019

28th November 2019

Petitioner Counsel: Mr. A. M. Quazi
Respondent Counsel: Mr. D. N. Mehta Mr. Masood Shareef
Act Name: Maharashtra Regional and Town Planning Act, 1966 Maharashtra Rent Control Act, 1999

HeadLine : Maharashtra Regional and Town Planning Act (1966) - Maharashtra Rent Control Act (1999), S.16(1)(i) - Ss. 149. 53 - Permanent injunction against notice u/S. 53 before Small Causes Court - Bar under S.149 - Applicability
Landlord & Municipal Corp. acted in fraudulent manner by issuing notice & getting map sanctioned, without recourse to S.16 Rent Control Act, in clandestine manner - Protection afforded to tenant u/S.16(1)(i) of Rent Control Act violated - Suit filed before Small Causes Court maintainable despite bar of jurisdiction contained in S. 149 of MRTP Act

Section :
Section 53 Maharashtra Regional and Town Planning Act, 1966 Section 149 Maharashtra Regional and Town Planning Act, 1966 Section 16(1)(i) Maharashtra Rent Control Act, 1999 Section 33 Maharashtra Rent Control Act, 1999

Cases Cited :
Paras 10, 15, 19: Satish Vs. Dr. Gopal, 2015(5) Mh.L.J. 463
Paras 10, 24: Pyarelal Vs. Shubhendra Pilania, (2019) 3 SCC 692
Paras 11, 12, 13: Commissioner, Akola Muni.Corpn. Vs. Bhalchandra, 2013(4) Mh.L.J. 45
Paras 11, 12, 14: Abdul Vs. Municipal Corpn. Of Gr.Mumbai, 2014(1) Mh.L.J. 227

JUDGEMENT

1. Both the civil revision applications arise out of the same impugned order and hence, they are taken up for hearing together and decided by this common order.

2. Civil Revision Application No.78 of 2019 has been filed by the original defendant No.1-Parvana Bhavana Memorial Trust and Civil Revision Application 79 of 2019 has been filed by original defendant Nos.2 and 3-Municipal Commissioner and Town Planning Department. The applicants claim that the District Court, Nagpur (Appellate Court) committed a grave error by allowing the appeal of respondent No.1 (original plaintiff) and setting aside the order of the Small Causes Court, Nagpur. The Appellate Court found that the Small Causes Court, Nagpur, could not have rejected the plaint of respondent No.1 and that the suit was maintainable before the Small Causes Court.

3. The principal contention raised on behalf of the applicants in these revision applications is that in view of the specific bar under section 149 of the Maharashtra Regional and Town Planning Act, 1966 (for short “MRTP Act”), whereby jurisdiction of Civil Court was barred, the Small Causes Court did not have jurisdiction to entertain the suit filed by respondent No.1, as the subject matter of challenge in the suit was a notice issued under Section 53 of the MRTP Act, as also an order sanctioning plan submitted by the original defendant No.1. The applicants contend that any grievance pertaining to such notice and order could be raised only under the provisions of the MRTP Act and therefore, the suit was not maintainable.

4. The facts relevant for deciding the present applications are that respondent No.1 in both the revision applications, is a tenant of the original defendant No.1 (applicant in C.R.A. No.78 of 2019) and it is in occupation of 1165 sq.ft. area for more than 50 years. Respondent No.1 claims that it has been paying rent regularly and in the last few years, since no one from the side of the original defendant No.1 was collecting the rent, the same was being regularly deposited in the bank. Respondent No.1 has contended before the Small Causes Court that the suit structure was constructed by one Mr.Eduljee pursuant to a sanction plan dated 31/07/1954, wherein the suit premises was shown as a showroom. According to respondent No.1, the original defendant No.1 sought to develop the area adjoining the suit premises through a developer.

5. On 17/12/2018, the original defendant No.2- Municipal Corporation issued a notice to respondent No.1 through the original defendant No.1 asking details of ownership and sanction plan. Respondent No.1 sent a reply on 26/12/2018 requesting for some time to submit documents. Thereafter, on 05/01/2019, defendant No.1 issued notice for removal of the suit premises on the ground that it was unauthorized construction. On 09/01/2019, respondent No.1 sent a letter to the Municipal Corporation stating that the notice was totally baseless, as it was in lawful possession of the suit premises.

6. Respondent No.1 filed Regular Civil Suit No.171 of 2019 before the Court of Civil Judge, Junior Division, Nagpur for declaration and permanent injunction, apprehending coercive action in pursuance of the aforesaid notice dated 05/01/2019. In the said suit, the Municipal Corporation filed a copy of sanctioned map dated 14/08/2007 and it is at this stage that respondent No.1 came to know that the original defendant No.1 had applied for fresh sanction of the building plan and in the sanctioned map dated 14/08/2007, the suit premises were shown in marginal space, which were required to be demolished.

7. Respondent No.1 claims that it became aware of the sanctioned map and the fact that the suit premises were now being shown in the marginal space, only when the documents came on record in the aforesaid suit and, therefore, it was prompted to file the suit before the Small Causes Court, Nagpur from which the present revision applications arise. Respondent No.1 filed the said suit for permanent injunction under the provisions of the Provincial Small Causes Courts Act, 1887 read with section 33 of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as the “Rent Control Act”). In this suit, respondent No.1 narrated the sequence of events and contended that the notice dated 05/01/2019 issued by the Municipal Corporation and the sanction of the map on 14/08/2007 were bad-inlaw, as they violated the protection available to respondent No.1 under section 16(1)(i) of the Rent Control Act. The defendants in the suit i.e. revisional applicants herein, filed applications for rejection of the plaint on the ground that the suit was barred by section 149 of the MRTP Act. It was contended that challenge to the notice and the order granting sanction to the map could be made subject matter of the challenge only under the provisions of the MRTP Act and that approaching the Civil Court was barred under section 149 thereof, demonstrating that the suit filed by respondent No.1 before the Small Causes Court was not maintainable and hence, the plaint deserved to be rejected. Respondent No.1 opposed the said contention raised on behalf of the revisional applicants.

8. By common order dated 24/05/2019 passed by the Small Causes Court, the applications filed by the revisional applicants (original defendants) were allowed and consequently the plaint was rejected.

9. Aggrieved by the same, respondent No.1 filed Regular Civil Appeal No.228 of 2019 before the Appellate Court. By the impugned judgment and order dated 18/06/2019, the Appellate Court allowed the appeal holding that the suit was maintainable, thereby setting aside the order of the Small Causes Court.

10. Mr. C.S.Kaptan, Senior Advocate along with Mr. Masood Sharif, learned counsel appearing for the revisional applicants in Civil Revision Application No.79 of 2019 and Mr. A.M.Quazi, learned counsel appearing for the revisional applicants in Civil Revision Application No.79 of 2019, submitted that the impugned judgment and order passed by the Appellate Court was wholly unsustainable, since it was in the teeth of section 149 of the MRTP Act and the position of law enunciated in various judgments of the Hon’ble Supreme Court and this Court regarding jurisdiction of Civil Court being barred in the face of such a provision. It was submitted that a perusal of the prayer clause of the suit would show that respondent No.1 raised a direct challenge to the notice dated 05/01/2019 and sanctioned map dated 14/08/2007, which were both issued as per statutory powers exercised by defendant No.2-Municipal Corporation and that such a challenge before the Small Causes Court was clearly barred by section 149 of the MRTP Act. It was submitted that respondent No.1 had an effective remedy under section 53 of the MRTP Act to challenge the said notice and sanctioned map and therefore, respondent No.1 could not have invoked the provisions of the Rent Control Act to challenge the said notice and sanctioned map, under the garb of seeking protection as a tenant under the Rent Control Act. The learned counsel for the applicants placed reliance on judgment of the Hon’ble Supreme Court in the case of Pyarelal v. Shubhendra Pilania, reported in (2019) 3 SCC 692 and judgment of this Court in the case of Satish v. Dr. Gopal, reported in 2015(5) Mh.L.J. 463.

11. On the other hand, Mr. D.N. Mehta, learned counsel appearing for respondent No.1 in both the revision applications, submitted that the thrust of the suit filed by respondent No.1 was on the fact that the notice issued by the Municipal Corporation and the clandestine manner in which the map was sanctioned, without the landlord i.e. the original defendant No.1 taking recourse to section 16 of the Rent Control Act, demonstrated that the said actions were in violation of section 16(1)(i) of the Rent Control Act, apart from the fact that they were mala fide and unsustainable. It was submitted that a perusal of the pleadings in the plaint would demonstrate that the main plank of the contentions raised on behalf of respondent No.1 was the protection afforded to him as a tenant under the law of the land manifested by the Rent Control Act, which could not be bypassed by the original defendant No.1 by resorting to the aforementioned actions. It was submitted that in such a situation, approaching the Civil Court was permitted, even in the face of the provision like section 149 of the MRTP Act. It was further submitted that the enquiry pertaining to the notice and the sanctioned map was only incidental to the main enquiry sought by respondent No.1 in the aforesaid suit, which the Small Causes Court was certainly entitled to conduct. The learned counsel placed reliance on judgments of this Court in the case of Commissioner, Akola Muni.Corpn. v. Bhalchandra, reported in 2013(4) Mh.L.J. 45 and Abdul v. Municipal Corpn. Of Gr.Mumbai, reported in 2014(1) Mh.L.J. 227 and judgment and order dated 30/04/2019 passed by this Court in Writ Petition No.4777 of 2014, Orbit Super Market Pvt. Ltd. v. Smt. Mukta Arvind Bobde.

12. Having heard the learned counsel for the rival parties, the principal contention raised on behalf of the revisional applicants is that the suit filed by respondent No.1 was not maintainable before the Small Causes Court, in the face of section 149 of the MRTP Act. While examining the said contention, it needs to be appreciated as to what is the approach adopted by Courts when such a provision ousting jurisdiction of the Civil Court is part of a statute. It has been held consistently that even if there is a provision that excludes jurisdiction of the Civil Court by specifically providing that any action undertaken under the provisions of the statute shall not be called into question in any suit, an absolute and complete bar on the jurisdiction of the Civil Court cannot be inferred. Despite such a provision, in certain contingencies, the Civil Court can exercise jurisdiction, depending upon the facts and circumstances of the case. A Division Bench of this Court in the case of Abdul v. Municipal Corpn.of Gr.Mumbai (supra) considered such a question and upon reviewing various judgments, quoted with approval from a judgment of a learned Single Judge of this Court in the case of Commissioner, Akola Muni.Corpn. v. Bhalchandra (supra). In those cases also, this Court was concerned with such a similar provision, whereby jurisdiction of Civil Court was ousted.

13. In the case of Commissioner, Akola Muni.Corpn. v. Bhalchandra (supra), it was held by this Court as follows :-
“7. Now, Section 433-A of the Maharashtra Municipal Corporations Act creating a bar of jurisdiction of the Civil Court, being relevant, is reproduced below :
"433-A. Bar of jurisdiction - Save as otherwise provided in this Act, any notice issued, order passed or direction issued by the Designated Officer, under sections 260, 261, 264, 267 or 478 shall not be questioned in any suit or other legal proceedings." Undoubtedly, if the plaintiff comes before the Civil Court alleging that a notice issued under Section 260 of the said Act is illegal in any manner and seeks a declaration to that effect, then the bar of jurisdiction to try such a suit under Section 433-A of the said Act shall operate. However, nonetheless, the inherent jurisdiction of a Civil Court in a suit challenging the notice under Section 260 of the said Act, on the limited grounds, viz. that the act of issuance of such notice is nullity, or that while issuing such notice, the mandatory provisions of the said Act have not been complied with, or that the Authority issuing such a notice has not acted in conformity with the fundamental judicial procedure, or that it is an abuse of exercise of power, or that the offending act has not been done in good faith, remains intact, in view of the aforestated law laid down in judicial pronouncement. The Civil Court is not precluded of its inherent jurisdiction to entertain and decide such challenge to a notice under Section 260 of the said Act, on such limited grounds, particularly when there is no forum available under the said Act to ventilate such grievances in respect of it. Hence, the question of law at Serial No.(i) is answered accordingly.
8. …...
9. ……
10. A plea of bar to jurisdiction of the Civil Court to entertain and decide the challenge to a notice under Section 260 of the said Act on the limited grounds, has to be considered having regard to the contentions raised in the plaint, the averments disclosing the cause of action, and the reliefs sought for therein. All such averments must be considered as a whole and not in isolation. The plaint must contain all such statements of material facts, as are necessary to invest such jurisdiction with the Civil Court. The statements of facts must be very clear and specific and not vague. The absence of a single material fact of jurisdiction, would entail the consequences of dismissal of suit, as barred by Section 433-A of the said Act.”

14. As noted above, the said position of law was quoted with approval by division of this Court in the case of Abdul v. Municipal Corpn. of Gr.Mumbai (supra) and it was reiterated that a person could not be prevented from approaching a Civil Court merely because there was a statutory bar in a given statute.

15. In this context, the judgment relied upon by by the learned counsel appearing for the revisional applicants in the case of Satish v. Dr. Gopal (supra) also needs to be perused. The said case concerned the MRTP Act itself and the subject matter of challenge in the suit filed in that case concerned alleged illegal construction undertaken by the defendants therein. This Court took note of the specific prayers made in the said suit and found that the relief sought by the plaintiff therein was of such a nature that it could not fit into the limited contingencies within which a Civil Court could exercise jurisdiction, despite the statutory bar in exercise of jurisdiction by the Civil Court as manifested in section 149 of the MRTP Act. In the facts and circumstances of the said case, this Court found that the plaintiff had failed to make out a case for holding that the suit was maintainable. In the said case, the specific grievance of the plaintiff was that construction sought to be undertaken by the defendants therein would cause nuisance to the residents and the pleadings included allegations of technical violations while challenging the sanction plan. In that context, it was held that statutory remedy in the form of section 51 of the MRTP Act was available to the plaintiff, even if, he could not have filed an appeal under section 47 thereof. Thus, in the facts and circumstances of the said case, this Court came into conclusion that the suit was not maintainable and the preliminary issue was decided in favour of the defendants.

16. In the present case, the pleadings in the plaint need to be appreciated and it is necessary to examine whether the facts and circumstances of the present case show that the suit filed by respondent No.1 fell within the contingencies, wherein the Small Causes Court could exercise jurisdiction, notwithstanding the bar contained in section 149 of the MRTP Act.

17. It is the contention of respondent No.1 that the original defendant No.1 (landlord) has resorted to the aforesaid tactics of involving Municipal Corporation in its design to oust respondent No.1 from the suit premises, without resorting to the mandate of the Rent Control Act. It is claimed by respondent No.1 in the plaint that since the original defendant No.1-landlord did not wish to adopt the due process of law to evict respondent No.1, an application was made for a fresh sanction map wherein the suit premises was deliberately shown in marginal space, requiring its demolition, the direct consequence of which would be eviction of respondent No.1. Thus, it was claimed by respondent No.1 in the plaint that the original defendant No.1- landlord acted along with the Municipal Corporation in such a fraudulent manner only to avoid the rigours of the Rent Control Act by issuing the aforesaid notice and getting the map sanctioned in a clandestine manner. On this basis, it was claimed by respondent No.1 that the notice as well as the sanctioned map violated the provisions of the Rent Control Act and the protection afforded to respondent No.1 therein, thereby demonstrating that the suit filed before the Small Causes Court was maintainable despite bar of jurisdiction contained in section 149 of the MRTP Act.

18. Section 16(1)(i) of the Rent Control Act specifically provides for the manner in which the landlord may recover possession of the premises from the tenant if he reasonably and bona fide requires the premises for immediate purpose of demolishing for the purpose of erecting new building in place of premises sought to be demolished. According to respondent No.1, unless the said requirement of section 16(1)(i) of the Rent Control Act was satisfied by the original defendant No.1-landlord, respondent No.1 could not be evicted. The emphasis on the protection provided by the aforesaid provision was the basis of the suit filed by respondent No.1. A perusal of the pleadings in the plaint do show that a specific allegation is made that the offending act of issuance of notice dated 05/01/2019 and sanction of map dated 14/08/2007 were acts not done in good faith by the defendants and that they resulted in violation of the mandatory protection available to respondent No.1 under the Rent Control Act. It is on this basis that challenge to the notice and the sanctioned map is raised on behalf of respondent No.1. It is the case of respondent No.1 that if defendant No.1-landlord is able to succeed in a proceeding initiated for eviction of respondent No.1 under section 16(1)(i) of the Rent Control Act, further proceedings for sanctioning of a map and consequent necessity of the suit premises could be undertaken. But, without resorting to the Rent Control Act, the actions undertaken by the landlord allegedly in connivance with the Municipal Corporation rendered the notice and the sanctioned map as unsustainable.

19. This Court finds that the nature of pleadings in the plaint have made out a case in favour of respondent No.1 regarding jurisdiction of the Small Causes Court in the present case. The Appellate Court has specifically adverted to the pleadings in the plaint and the prayers made therein to find that the Small Causes Court committed a grave error in rejecting the plaint on the ground of jurisdiction under section 149 of the MRTP Act. This Court is in agreement with the findings rendered by the Appellate Court in that regard. As regards the reliance placed by the revisional applicants on judgment of this Court in the case of Satish v. Dr. Gopal (supra), the said case is clearly distinguishable on facts. The plaintiff in the said case had directly attacked the sanctioned plan on technical violations and on the ground that nuisance was likely to be caused to the residents by construction sought to be undertaken by the defendants therein. It was in the said context that this Court found availability of remedy under section 51 for the plaintiff therein, thereby demonstrating that exceptional case for maintaining suit before a Civil Court was not made out.

20. But in the present case, the revisional applicants were unable to demonstrate before this Court that respondent No.1 had any effective remedy for its grievance within the provisions of the MRTP Act. In order to claim that there was a remedy available, the learned counsel appearing for the revisional applicants referred to section 53 of the MRTP Act, particularly sub-section (3) thereof. The said provision reads as follows.
53. Power to require removal of unauthorised development
(1)…...
(2)…...
(3) Any person aggrieved by such notice may, within the period specified in the notice and in the manner prescribed, apply for permission under section 44 for retention on the land of any building or works or for the continuance of any use of the land, to which the notice relates, and pending the final determination or withdrawal of the application, the mere notice itself shall not affect the retention of buildings or works or the continuance of such use.
(4) The foregoing provisions of this Chapter shall, so far as may be applicable apply to an application made under sub-section (2).
(5) If the permission applied for is granted, the notice shall stand withdrawn; but if the permission applied for is not granted, the notice shall stand; or if such permission is granted for the retention only of some buildings, or works, or for the continuance of use of only a part of the land, the notice shall stand withdrawn as respects such buildings or works or such part of the land, but shall stand as respects other buildings or works or other parts of the land, as the case may be, and thereupon, the owner shall be required to take steps specified in the notice under subsection (1) as respects such other buildings, works or part of the land.”

21. It was on the basis of the above quoted provision of the MRTP Act that the learned counsel for the revisional applicants claimed that respondent No.1 had a remedy and therefore, the bar under section 149 of the MRTP Act clearly applied to the facts and circumstances of the present case. A perusal of the above quoted provision shows that a person aggrieved by a notice could apply for permission to retain land or building for continuance of use of the same. On this basis, it was claimed that respondent No.1 could have applied to the Competent Authority under the said provision for relief and, therefore, it could not be claimed that respondent No.1 was left remediless.

22. But, if it is held that section 53(3) of the MRTP Act was the remedy available to respondent No.1, it would mean that on an application moved by respondent No.1, the Competent Authority could either withdraw the notice or permit retention of only some part of the premises or the application would stand rejected. In either case, it would directly impinge upon the protection available to respondent No.1 as a tenant under the provisions of the Rent Control Act. If the Competent Authority would grant permission to retain only some portion of the premises, it would clearly impinged upon the rights of respondent No.1 as a tenant to continue in possession of the entire premises. This would lead to a situation where the original defendant No.1- landlord would successfully circumvent the provisions of the Rent Control Act to get rid of respondent No.1. Even otherwise, this would lead to a situation of foisting jurisdiction on the Competent Authority under the MRTP Act, regarding protection available to tenants under the Rent Control Act, which cannot be contemplated. It is in this context that respondent No.1 is justified in pleading before the Small Causes Court that the action of the defendants is unsustainable, as it amounts to denying respondent No.1 the protection available under the Rent Control Act. Therefore, the contentions raised on behalf of the revisional applicants on the basis of section 53 of the MRTP Act cannot be accepted.

23. Although, a perusal of merely the prayer clause in the suit filed by respondent No.1 at first blush, may give an impression that such a prayer cannot be made before the Small Causes Court in the face of the bar contained in section 149 of the MRTP Act, a proper appreciation of the pleadings in the plaint clearly demonstrates that the Small Causes Court can certainly exercise jurisdiction to consider the grievance raised by respondent No.1. The contention raised on behalf of the revisional applicants Municipal Corporation that in a suit between the landlord and tenant it could never be made a party, is wholly misplaced because of the specific pleadings raised on behalf of respondent No.1 in the suit filed before the Small Causes Court. It is only as a matter of fair procedure, that the Municipal Corporation is made a party before the Small Causes Court, since certain pleadings are raised by respondent No.1 concerning the action undertaken by the Municipal Corporation. In this context, the learned counsel for respondent No.l is justified in contending that any such enquiry undertaken by the Small Causes Court regarding actions of the Municipal Corporation, would be incidental to the main enquiry regarding protection available to respondent No.l under the provisions of the Rent Control Act. Thus, there is no substance in the said contention also.

24. This Court finds that the reliance placed on behalf of the revisional applicants on the judgment of the Hon’ble Supreme Court in the case of Pyarelal v. Shubhendra Pilania (supra) is also misplaced, because the said case is clearly distinguishable on facts. The aforesaid case concerned declaration in respect of gift deed involving property in respect of which proceeding before the Revenue Court for declaration of khatedari rights was already pending. Such is not the situation in the present case and therefore, the reliance placed on the said judgment is also misplaced.

25. In view of the above, this Court finds that no error can be attributed to the impugned order passed by the Appellate Court. Accordingly, the revision applications are dismissed.

Revision dismissed